The Law Decree no. 16/2020 on «urgent measures for the organisation and conduct of the Milano Cortina 2026 Olympic and Paralympic winter games and the Turin 2021-2025 ATP Finals, as well as the prohibition of parasitic advertising» was published in the Official Journal no. 66 on 13 march 2020. With this Decree, containing several organisational provisions relating to the above-mentioned sporting events, the Legislator has also established a general and organic discipline of the ambush marketing phenomenon (that we have discussed here in our blog). Following the approval of the Chambers of Deputies, the Law Decree was assigned to the Senate’s Education and Cultural Property Commission on 15 April 2020 and the conversion into law is expected for mid-May.

Article 10.1 of the Law Decree at issue prohibits parasitic advertising practices, carried out during national or international sporting events or fairs without the authorisation of the organisers and aimed at achieving an economic and competitive advantage. In particular, the categories of prohibited conducts comprises of:

  • the creation of an indirect link between a trademark or other distinctive sign and one of the above-mentioned events, capable of misleading the public about the identity of the official sponsors;
  • the false claim in its advertising of being an official sponsor of one of the above-mentioned events;
  • the promotion of its trademark or other distinctive sign through any action capable of attracting the public’s attention, carried out during the event and capable of generating the erroneous impression that its author is the official sponsor;
  • the sales and marketing of products and services abusively marked, even in part, with the logo of one of the above-mentioned events or with other distinctive signs capable of generating an erroneous impression on the logo itself and creating a misleading impression of an indirect connection with the event or with its organiser.

However, the Decree does not prohibit all the conducts that, according to the doctrine, constitute an ambush marketing practice. For example, it is worth mentioning that certain forms of indirect or incidental ambush marketing, among which the so-called saturation ambushing, that occurs when the unofficial sponsors increase their advertising campaigns at the time of a certain event, but without any direct reference to the event itself.  

In addition, Article 10.3 of the Decree expressly provides that «the conducts carried out in the performance of sponsorship contracts concluded with individual athletes, teams, artists or participants in the events referred to in Paragraph 1, do not constitute parasitic advertising». The purpose of this provision is to prevent any dispute arising between the sponsorships of the events and those regarding the individual participants of the events themselves. 

As regards to the temporal scope of the prohibition, Article 11 states that the latter shall operate from the ninetieth day prior to the official starting day of the sporting event or fair until the ninetieth day after the official end date.

Finally, Article 12 imposes an administrative fine on the infringers from 500.000 Euros up to 2.500.000 Euros and provides the Italian Antitrust Authority (AGCM) with the relevant sanctioning power.

In any case, the provisions at issue clearly «do not exclude other legislative measures for the protection of those who claim a violation of their rights and interests as a result of one of the conducts referred to in Article 10». This means that the damaged parties are always allowed to take actions against the ambusher, typically an injunction to prevent illicit conducts and damages (therefore in addition to the fine).